Stopping oil spills

Jun 01, 1999

Oil pollution is often viewed as a coastal incident, such as the Exxon Valdez oil spill. Coastal oil spills, however, best illustrate the underlying premise of oil pollution regulation - the protection of navigable waters. Oil pollution regulation of bulk storage facilities is primarily directed at preventing and responding to spills from aboveground storage tanks (ASTs). The Federal Water Pollution Control Act of 1972 (Clean Water Act) and the Oil Pollution Act of 1990 (OPA) are the primary federal laws that govern oil discharges affecting or threatening navigable waters of the United States.

Section 311 of the Clean Water Act (CWA), as amended by OPA, provides the authority for the federal government's oil spill program. Major provisions of Section 311 authorize the federal government to:

Establish reporting triggers, or criteria, for notifying the federal government of discharges of oil and hazardous substances into U.S. waters;

Promulgate regulations that require a facility owner or operator to prepare a plan for responding to a worst case discharge and to a substantial threat of such a discharge.

Responsibility for implementing Section 311 is divided between the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Transportation (DOT) by Executive Order 11735. In general, DOT is responsible for regulations governing vessels and pipelines, while EPA is responsible for bulk storage facilities. Within DOT, the U.S. Coast Guard (USCG) and the Office of Pipeline Safety, part of DOT's Research and Special Programs Administration (RSPA), have responsibility for implementing Section 311.

The Oil Pollution Prevention regulation, under the authority of Section 311(j) of the CWA, requires regulated facilities to prepare and implement SPCC plans. The intent of an SPCC plan is to prevent the discharge of oil from onshore and offshore non-transportation-related facilities. In 1990 Congress passed the Oil Pollution Act, which amended Section 311(j) of the CWA to require facilities located in areas where an oil discharge could reasonably be expected to cause "substantial harm" to the environment to develop and implement facility response plans (FRPs). The intent of an FRP is to provide planned responses to oil discharges.

A facility is SPCC-regulated if the facility, due to its location, could reasonably be expected to discharge oil into or upon the navigable waters of the United States or adjoining shorelines, and the facility meets one of the following criteria regarding oil storage:

A facility that may be required to prepare and submit an FRP is already SPCC-regulated. A facility that because of its location could reasonably be expected to cause "substantial harm" to the environment by a discharge of oil into navigable waters, adjoining shorelines or the exclusive economic zone is required to develop and implement FRPs for responding to a worst case discharge of oil from the facility. A facility can cause "substantial harm" if it meets one of the following criteria:

1) The facility has a total storage capacity greater than or equal to 42,000 gallons and performs over-water oil transfers to or from vessels; or

2) The facility has a total oil storage capacity greater than or equal to 1 million gallons, and meets any one of the following conditions:

i) The facility does not have adequate secondary containment;

ii) A discharge could cause injury to an environmentally sensitive area;

iii) A discharge could shut down a public drinking-water intake; or

iv) The facility has had a reportable spill greater than or equal to 10,000 gallons in the past five years.

Appendix F of 40 CFR Section 112 contains the format and content requirements for an FRP.

Only owners or operators of "substantial harm facilities" are required to prepare and submit FRPs. EPA is required to approve only those plans submitted for "significant and substantial harm facilities." To determine whether a facility could, because of its location, reasonably be expected to cause "significant and substantial harm" to the environment by discharging oil into or on the navigable waters or adjoining shorelines, the EPA regional administrator may consider the following:

Type of transfer operation;

Oil storage capacity;

Lack of secondary containment;

Proximity to fish and wildlife, and sensitive environments and other areas determined by the regional administrator to possess ecological value;

Proximity to drinking water intakes;

Spill history;

Other site-specific characteristics and environmental factors the regional administrator determines as relevant to protecting the environment from harm by discharges of oil into or on navigable waters;

Frequency of past spills;

Proximity to navigable waters;

Age of oil storage tanks; and

Other facility-specific and regional-specific information, including local impacts on the public health.

National Preparedness for Response Exercise Program
EPA's Oil Pollution Prevention regulation requires FRP-regulated facilities to develop a program of facility response drills or exercises. The National Preparedness for Response Exercise Program (PREP) was developed to establish a workable exercise program that meets the intent of the Oil Pollution Act of 1990. The PREP represents the minimum guidelines for ensuring adequate response preparedness and is a voluntary program for FRP facilities. FRP facilities are not required to follow the PREP guidelines and, if they choose not to, may develop their own exercise program that complies with the exercise requirements found in 40 CFR Section 112.21. The PREP guidelines were written by the USCG, EPA, the Office of Pipeline Safety and the U.S. Department of Interior's Mineral Management Service. As such, the PREP guidelines satisfy the requirements for a facility or vessel response drill or exercise program under each agency's facility or vessel response plan regulation under OPA.

PREP exercises are divided into internal and external exercises.

Internal exercises
Internal exercises are conducted wholly within the FRP facility's organization and are designed to examine the various components of the FRP. EPA internal exercises include:

It is the facility's responsibility to ensure that its cleanup contractor or spill cooperative has completed its equipment deployment exercise requirements and that the facility has obtained this documentation. In addition, the facility is required to perform one unannounced exercise annually, which can include any one of the internal exercises listed except for QI notification exercises.

Exercise documentation must be in writing and signed by an appropriate facility representative. Actual notifications and responses may be documented for credit toward exercise requirements. Appendix A of the Final PREP Guidelines (August 1994) contains examples of internal exercise documentation forms.

External exercises
External exercises involve other members of the response community and are designed to examine the facility's ability to coordinate with the response community. They include:

1) Area exercises (EPA - inland area; USCG - coastal area). Area contingency plan (ACP) holders are required to follow the PREP guidelines. For purposes of the PREP, an area is defined as that specific geographic area for which a separate and distinct ACP has been prepared in accordance with OPA by either the Coast Guard or EPA. The PREP area exercise schedule is published in the Federal Register.

2) Government unannounced exercises. Government-initiated unannounced exercises are designed to give the federal agency with primary response oversight over a particular FRP facility the opportunity to evaluate, on a random basis, the response preparedness of that facility. An FRP facility directed to participate in a government-initiated unannounced exercise is required to participate as directed. The cost of this type of unannounced exercise would be borne by the facility. An FRP facility that has participated in a government-initiated unannounced exercise is not required to participate in another one for at least 36 months from the time of the last exercise. The FRP facility must maintain documentation of its participation in a government-initiated unannounced exercise.

Note: The views expressed in this article are those of the author's and do not necessarily reflect the views of the U.S. EPA.

This article originally appeared in the 06/01/1999 issue of Environmental Protection.